EXHIBIT NO. 10.48
NORTH CAROLINA
GUARANTY AGREEMENT
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GUILFORD COUNTY
THIS GUARANTY AGREEMENT is made and given this 1st day of September,
1999, by GIBRALTAR PACKAGING GROUP, INC., a Delaware corporation (hereinafter
referred to as Gibraltar), to JIT MANUFACTURING, INC. (hereinafter sometimes
referred to as "Secured Party").
W I T N E S S E T H:
WHEREAS, Secured Party is acquiring substantially all of the assets of
G B Labels, Inc. ("GBL"), a wholly owned subsidiary of Gibraltar, pursuant to an
Asset Purchase Agreement and ancillary documents (such Asset Purchase Agreement
and all documents and agreements related thereto are hereinafter collectively
referred to as the "Asset Purchase Agreement"); and
WHEREAS, Gibraltar's unconditional and continuing guarantee of the
obligations of GBL is a condition to closing the Asset Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration, and in order to induce Secured Party to accept and close
the Asset Purchase Agreement, Gibraltar hereby absolutely and unconditionally
guaranties to Secured Party and its successors and assigns, the due and punctual
performance and payment of all obligations due Secured Party under the Asset
Purchase Agreement including any amendments, modifications, replacements,
substitutes and supplements thereto and any renewals or extensions thereof
agreed to by GBL and the Secured Party (all liabilities to pay money to or
perform obligations for Secured Party under the Asset Purchase Agreement being
hereinafter termed "Obligations of GBL").
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In the event this guaranty is placed with an attorney for collection,
Gibraltar agrees to pay all costs of collection including, without limitation,
court costs and the reasonable attorneys' fees of Secured Party.
In order to implement the foregoing and as additional inducements to
Secured Party, Gibraltar further covenants and agrees:
1. This guaranty is and shall remain an unconditional and continuing
guaranty of performance and payment and not of collection and shall remain in
full force and effect irrespective of any interruption(s) and shall apply to and
guarantee the due and punctual payment of all Obligations of GBL due by GBL to
Secured Party. To that end, Gibraltar hereby expressly waives any right to
require Secured Party to bring any action against GBL or any other party or to
require that resort be had to any security, if any, in favor of GBL or any other
party. Gibraltar acknowledges that its liabilities and obligations hereunder are
primary rather than secondary. To that end and, without limiting the generality
of the foregoing, Gibraltar expressly waives any rights or defenses it otherwise
might have had under any applicable law to require Secured Party to attempt to
recover against GBL or any other party or against any collateral, if any, as a
condition to enforcement of this Guaranty.
2. Gibraltar acknowledges that the termination of liability of GBL
under the Obligations of GBL [(i) including, but not limited to termination by
reason of discharge in bankruptcy, receivership, stay in bankruptcy or any other
proceeding at law or in equity, (ii) but not including termination by reason of
failure of consideration, full performance by GBL, settlement between GBL and
Secured Party, or the release of GBL by Secured Party] shall not release
Gibraltar from full liability under the Obligations of GBL hereby guaranteed and
then in
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existence or from any renewals or extensions thereof made by the Secured Party
and GBL, in whole or in part, whether such renewals or extensions are made
before or after the effective date of such termination and with or without
notice to Gibraltar.
3. This Guaranty Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof, and no waivers or
modifications shall be valid unless they are reduced to writing, duly executed
by the party to be charged thereby, and expressly approved in writing by Secured
Party.
4. Gibraltar further hereby consents and agrees that Secured Party and
GBL, may at any time, or from time to time: (i) extend or change the time of
payment, and/or the manner, place or terms of payment of any or all of the
Obligations of GBL; and (ii) subordinate the payment of any and all of the
Obligations of GBL, and/or any part of the same, to the payment of any other
debts or claims, which may at any time(s) be due or owing to Secured Party and
GBL, and/or any other party in such manner and upon such terms as Secured Party
and GBL may deem proper and/or desirable, and without notice to or further
assent from Gibraltar, it being agreed that Gibraltar shall be and remain bound
by, under and upon this Guaranty Agreement, irrespective of the existence, value
or condition of any collateral, if any, and notwithstanding any such change,
exchange, sale or other disposition, application, renewal or extension.
5. Gibraltar hereby waives: (i) notice of acceptance of this Guaranty;
(ii) notice(s) of entering into and engaging in business transactions and/or
contractual relationships and any other dealings between GBL and Secured Party;
(iii) presentment and/or demand for payment of any of the Obligations of GBL;
(iv) protest or notice of dishonor or default to Gibraltar or to any other
person or entity with respect to any of the Obligations of GBL including,
without limitation, no-
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xxxx of acceleration; and (v) any demand for payment or performance under this
Guaranty Agreement.
6. Gibraltar expressly warrants and represents to Secured Party, that
Gibraltar is a corporation organized and existing under the laws of the State of
Delaware, that Gibraltar is in good standing under the laws of that State and
that all necessary corporate action has been taken to authorize the execution
and delivery by Gibraltar of this Guaranty and that this Guaranty constitutes
the legal, valid and binding obligation of Gibraltar enforceable in accordance
with its terms.
7. No waiver by Secured Party of any default(s) by Gibraltar and/or GBL
shall operate as a waiver of any other default or of the same default on a
future occasion.
8. This Guaranty shall be deemed to have been made in Greensboro, North
Carolina, regardless of the place where Gibraltar in fact executed this
instrument and where this instrument was delivered to the Secured Party; and
this Guaranty shall be interpreted, and the rights and liabilities of the
Secured Party and Gibraltar determined in accordance with the substantive laws
of the State of North Carolina, without giving effect to its choice of law
rules; and this Guaranty is given by Gibraltar subject to any dispute, claim,
suit or other legal action arising out of this Guaranty being commenced and
prosecuted only in a North Carolina State Court or a United States Federal
District Court sitting in Guilford County, North Carolina.
IN WITNESS WHEREOF, Gibraltar has caused this instrument to be executed
in its corporate name by its undersigned duly authorized corporate officer as of
the day and year first above written.
GIBRALTAR PACKAGING GROUP, INC.
a Delaware corporation
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By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Vice President
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